United States District Court, W.D. Pennsylvania
MEMORANDUM OPINION AND ORDER OF COURT
TERRENCE F. McVERRY, District Judge.
Pending before the Court are a MOTION IN LIMINE (ECF No. 36) filed by Defendant Lahbib Hannoune and a MOTION IN LIME (ECF No. 37) filed by the government. The government has also filed a RESPONSE TO HANNOUNE'S MOTION IN LIMINE (ECF No. 39). The Court held an oral argument on Friday, October 10, 2014 at which the undersigned issued a partial ruling on the pending motions. This Memorandum Opinion memorializes that ruling and disposes of the remaining evidentiary issues.
On September 18, 2013, a federal grand jury sitting in the Western District of Pennsylvania returned a one-count Indictment against Defendant Lahbib Hannoune which charged him with the crime of Unlawful Procurement of Citizenship or Naturalization on or about January 15, 2009 in violation of 18 U.S.C. §§ 1425(a), (b). The indictment charges that Defendant falsely answered "no" to an oral reading of two questions on a Form N400: "have you ever committed a crime or offense for which you have not been arrested" and "have you ever given false or misleading information to any U.S. government official while applying for any immigration benefit or to prevent deportation, exclusion, or removal." The indictment further alleges that Defendant's responses were false because "on October 30, 2008 and November 24, 2008, [he] had unlawfully engaged in [an] online video display of his genitals and performance of masturbation for a person who was represented to be a minor at age 13 in violation of Pennsylvania law." A non-jury trial is scheduled to commence on the sole count of the Indictment on Monday, October 20, 2014.
In anticipation of trial, both parties have filed motions in limine in which they seek a ruling on the admissibility of certain evidence pursuant to Federal Rule 404(b). Defendant moves the Court to exclude the videos, pictures or images related to his state criminal conviction and to only admit evidence to show that he was charged with the underlying crimes. The government seeks to introduce Defendant's state-court information and guilty plea to show that he committed a crime or offense for which he was not arrested prior to the naturalization interview; and "other evidence showing what he did" to show that he procured naturalization contrary to law or to which he is not entitled. The government expands on this latter request in its response, noting that it seeks to introduce four or five chat sessions, two excerpted videos, and two screen captures.
Without objection, the government submitted its proffered evidence to the Court in advance of the October 10, 2014 hearing. More specifically, the government has provided a Yahoo registration and custodial affidavit (Ex. 1); (2) five Yahoo messenger chat transcripts between pacyberprincess and bacobaco_10 dated October 29, 2008 (Ex. 2), October 30, 2008 (Ex. 5), November 24, 2008 (Ex. 8), December 17, 2008 (Ex. 12), January 29, 2009 (Ex. 16); and two DVD-R discs containing videos/excerpts dated October 30, 2008 (Ex. 7), November 24, 2008 (Exs. 10, 11), and January 29, 2009 (Ex. 18). See Gov. Resp. at 5 n.2, ECF No. 39. The Court has reviewed all of the material in advance of this ruling. See generally United States v. Cunningham, 694 F.3d 372, 383-87 (3d Cir. 2012).
There is significant overlap between the two motions and the government's response. In essence, the issue before the Court is the admissibility of the Yahoo messenger chat transcripts, screen captures and videos.
II. Legal Standard
Under Rule 404(b)(1), "[e]vidence of a crime, wrong, or other act is not admissible to prove a person's character in order to show that on a particular occasion the person acted in accordance with the character." Such evidence may be admissible for another relevant purpose, "such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident." Fed.R.Evid. 404(b)(2). As the United States Court of Appeals for the Third Circuit has recently explained, however, "Rule 404(b) is a rule of general exclusion, and carries with it no presumption of admissibility.'" United States v. Caldwell, 760 F.3d 267, 276 (3d Cir. 2014) (quoting 1 Christopher B. Mueller & Laird C. Kirkpatrick, Federal Evidence § 4:28, at 731 (4th ed. 2013)). Thus, the "permitted uses" should be treated as "exceptions" to the general rule, and "[a]s is generally the case with exceptions, " the burden of establishing that the evidence is admissible falls on the proponent of the evidence-in this case, the government. Id.
Further, because of the highly prejudicial nature of other-acts evidence, the rule "requires care from prosecutors and judges alike." United States v. Davis, 726 F.3d 434, 442 (3d Cir. 2013). The Court must follow the following four-part framework in deciding the whether evidence should be admitted under Rule 404(b): prior act evidence is inadmissible unless the evidence is (1) offered for a proper non-propensity purpose that is at issue in the case; (2) relevant to that identified purpose; (3) sufficiently probative under Rule 403 such that its probative value is not outweighed by any inherent danger of unfair prejudice; and (4) accompanied by a limiting instruction, if requested. Id. at 441 (citations omitted).
The first step requires the Court to determine "whether the evidence is probative of a material issue other than character." United States v. Boone, 279 F.3d 163, 187 (3d Cir. 2003) (citations omitted). To determine whether an "identified purpose is at issue, ' courts should consider the material issues and facts the government must prove to obtain a conviction.'" Caldwell, 760 F.3d at 276 (quoting United States v. Sampson, 980 F.2d 883, 888 (3d Cir. 1992)). While "the burden on the government is not onerous, " Sampson, 980 F.2d at 887, our court of appeals has "stress[ed] that a proponent's incantation of the proper uses of [prior act] evidence... does not magically transform inadmissible evidence into admissible evidence, " Caldwell, 760 F.3d at 276, (quoting United States v. Morley, 199 F.3d 129, 133 (3d Cir. 1999)). Rather, the specific purpose must be "of consequence in determining the action.'" Id. (quoting Fed.R.Evid. 401(b)).
At the second step of the analysis, the government must "explain how the evidence is relevant" to, or how it tends to establish, the identified non-propensity purpose. Id. "This step is crucial." Id. The government "must clearly articulate how that evidence fits into a chain of logical inferences, no link of which can be the inference that because the defendant committed... [such an act] before, he therefore is more likely to have committed this one.'" United States v. Lee, 612 F.3d 170, 186 (3d Cir. 2006) (quoting Sampson, 980 F.2d at 887) (emphasis added). If the government fails "to articulate this chain of inferences, " the Court must exclude the proffered evidence. Caldwell, 760 F.3d at 277 (citing Sampson, 980 F.2d at 888).
The Court's task is not over even "once it finds the proponent has shown that the evidence is relevant for a proper, non-propensity purpose." Id. The Court must then proceed to decide, under Rule 403, "whether the evidence is sufficiently probative, such that its probative value is not outweighed by the inherently prejudicial nature of prior bad act evidence." Id. (citing Sampson, 980 F.2d at 889). See also United States v. Claxton, ___ F.3d ___, 12-3933, 2014 WL 4056561, at *16 (3d Cir. Aug. 18, 2014). The Rule 403 balancing takes on special significance when dealing with Rule 404(b) evidence because "few categories of evidence bring greater risk of prejudice to the accused....'" Id. (quoting Mueller, Federal Evidence § 4:28, at 731 (4th ed. 2013)).
If the Court determines that the evidence survives the Rule 403 balancing test, then it must still provide a limiting instruction to the jury at the time the evidence is admitted if so requested by the defendant. Id. This last ...